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On the heels of the recent D.C. District Court decision that mostly upheld the NLRB's new notice posting rule, a district court judge has fully rejected the rule [ Download SC Notice Decision ]. In this most recent case, the judge held that the rule exceeded the NLRB's authority to enact rules "necessary to carry out" the provisions of the NLRA. The judge also emphasized, among other things, that the NLRB only reacts to cases brought to it, which the rule contradicts.

I tend to agree with the earlier decision, which viewed the "necessary" language as giving the NLRB broader authority; it seems to me that most agencies are give wide leeway with similar language. Moreover, the stress on the NLRB's reactive role seems overemphasized. That said, the lack of statutory authority for a notice, in contrast to a lot of other statutes, isn't helpful to the NLRB. I don't think that's fatal, but the judge in the recent decision disagrees.

Here's a pie in the sky solution: what if Congress passed a law requiring the posting of an NLRA notice that emphasized employees' right to unionize, not unionize (including decertify), and to act collectively in the absence of a union. In other words, full disclosure. If we're serious about informing employees of their rights--and others and I have written many times about the importance of doing so--then a more complete notice should be a good thing. I know, a snowball's chance of passing. But I'd love to at least see the bill proposed given all I've heard over the years about the need for employees to learn about their right not to be represented.

Given that we won't be seeing legislation anytime soon, we'll just have to follow these cases as they go up on appeal. I won't actually predict this, but it wouldn't surprise me to see this in the Supreme Court eventually. Stay tuned.

It is a commonplace in employment discrimination law that Title VII’s prohibition of sex discrimination has no legislative history. Courts have therefore argued that this prohibition must be restricted to the “traditional concept” of sex discrimination. Traditionally, courts suggest, discrimination “because of sex” referred only to practices that divided men and women into two perfectly sex-differentiated groups. Although Title VII doctrine has evolved over time, this “traditional concept” of sex discrimination continues to exert a powerful regulative influence over the law. It excludes certain claims — such as those by sexual minorities — from coverage and elevates the evidentiary burdens plaintiffs must satisfy in order to prove discrimination “because of sex.”

This article argues that the “traditional concept” of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Recovering the largely forgotten legislative history of Title VII’s sex provision, this article shows that there was little consensus and much debate in the 1960s about what qualified as sex discrimination. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny. In the 1970s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly. This article shows that history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate “because of sex.” The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles.

Kenneth Shiotani (National Disability Rights Network) just informed us that the Department of Labor Wage & Hour Division has extended the deadline for submitting comments to FMLA proposed regulations. The new deadline is April 30.

Joe Seiner has posted on SSRN the final chapter in his series on the intersection between employment discrimination and Iqbal. This one explores the implications of the plausibility standard for disparate impact cases: Plausibility & Disparate Impact, 64 Hastings L.J. ___ (forthcoming 2013). From the abstract:

In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both the courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.

There are two types of employment discrimination claims – intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true where a plaintiff has not had access to discovery.

One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This paper closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. This paper offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court’s recent decisions is preferable.

Navigating Twombly, Iqbal and other Supreme Court decisions, this paper explains how the plausibility standard should be applied to unintentional discrimination cases. This Article provides a blueprint for the courts and litigants to follow when considering a disparate impact claim, and addresses the implications of adopting the proposed approach. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts – for the first time – to make sense of these decisions in one of the most complex areas of employment discrimination law.

It’s been almost three weeks since the release of a National Labor Relations Board Inspector General report finding that Republican NLRB member Terence Flynn violated ethics rules. Since then, members of Congress from both parties have said the Justice Department should review the allegations. Flynn has bulked up his defense team with a former inspector general of his own — Glenn Fine, who investigated the Bush DOJ. But there’s been no comment on the scandal from the White House, which promoted Flynn, or from the Romney campaign, whose advisor Peter Schaumber allegedly received secret info from him.

“This is the cronyism and bias that you absolutely don’t want in a government agency,” says Jeffrey Hirsch, a former NLRB attorney who now teaches law at the University of North Carolina. “If [Flynn] found out one of his board staff was giving info to, say, a Democratic former board member,” says Hirsch, “I can’t imagine he wouldn’t fire the person on the spot.” (Spokespersons for the White House and NLRB Chairman Mark Pearce both declined Salon’s request for comment. The Romney campaign did not respond to multiple requests.)

...

[T]he Labor page on Romney’s website still prominently features an essay by Schaumber, bashing “misguided administrative actions by partisans at the NLRB” and promising that Romney will appoint NLRB members who pursue “flexibility” and “cooperative” labor relations. Hirsch says that as former NLRB members, Schaumber and Kirsanow “knew they shouldn’t have taken that stuff, and they clearly kept accepting it.” The situation is “incredibly ironic,” says Hirsch, “given all the criticism that the board has taken by Republicans” for supposed bias. “There’s no question that this was inappropriate. And so the silence is deafening.”

I've been noodling lately with Tim Glynn (and bothering the likes of Rebecca White, Mike Zimmer, and Steve Willborn) about the significance of DH Horton for mandatory arbitration. I've been around long enough to see a number of efforts fail to knock the Federal Arbitration Act off the top of the hill -- including the '91 Civil Rights Act, OWBPA, and, most recently, state unconscionability law. So it's not like I'm very optimistic about yet another effort.

Still, I'm pretty intrigued by Horton's conclusion that an employment agreement barring "joint, class, or collective claims . . . in any forum, arbitral or judicial" is a violation of the NLRA for workers covered by the statute. And, whether or not, the Board is "right" on the law, the Supreme Court's deference doctrine should, at least in theory, require the Fifth Circuit to uphold its construction of the NLRA. However, the courts have not been as deferential to the Board as maybe Chevron would require, and there's a joker in the deck anyway -- a court could defer to the Board on its interpretation of the NLRA but still find no deference due as to the FAA and the intersection of the two statutes.

So I'm far from predicting that this egg will actually hatch at the Fifth Circuit. (For those who are wondering about the picture on the right, that's Horton the Elephant, star of Horton Hatches the Egg and the better known Horton Hears a Who.)

On the other hand, I've been wondering why the Fifth Circuit decision matters all that much. Of course, it will matter a lot to the parties because it will determine whether the employer was guilty of an unfair labor practice in the case before the Board.

But my point is that, if the Board is correct, that would mean that any contract which barred concerted activity in pursuit of legal rights was contrary to a federal statute and should not be enforced. Presumably, then, any court asked to stay a suit pending arbitration would have to decide whether the arbitration clause was valid to the extent it barred bringing claims collectively, and, in the process, should afford the Board whatever deference was appropriate.

Or is that right? Does the party seeking release from such an agreement have to resort to the Board? This raises a question of primary jurisdiction. Or does it? After all, the Board has spoken on the principle, if not the application of the principle to the agreement before the court. And if there is a resort requirement, when does any unfair labor practice occur -- when the agreement is signed or when it's invoked to try to torpedo a class suit?

So far, the district courts have not been very receptive to such arguments, and even accepting them would raise a host of second order questions. But the reality remains that, regardless of the result in the Horton case itself, the challenge it poses may well arise in a number of other cases and may turn out to be the Court's next big arbitration issue in the employment context.

Tim and I are probably going to tackle this shortly, and any thoughts would be appreciated.

I know everyone has been waiting with bated breath to see workplace prof faculty moves for the coming academic year, so without further ado, here is the annual report of workplace law professors comings, goings, etc. (as always, if you have additional information, please provide in the comments). This post will be updated as additional information comes in.

Submissions are sought on a wide-range of labor law topics on both the state and federal level. A first draft of any proposed article accepted for publication would need to be prepared by early August.

The Journal is also seeking short essays offering reform proposals. Preferred submissions will be 8-10 pages in length, and will be primarily devoted to proposing novel law and policy changes to state or federal labor law with minimal background information beyond that necessary to identify the problem addressed.

Please direct inquiries, proposals, and submissions to sae.legis@gmail.com. Submissions should include a resume, cover letter, and abstract or article draft.

-I've continued to be surprised at the relative silence on the recent Flynn scandal. As I said in one of my earlier posts, can you imagine the what would be happening if this involved Democrats? Nevertheless, there has been some increase in pressure. Among the recent events:

-Numerous union leaders have now spoken out against Flynn, including the Machinists, UFCW, and AFL-CIO.

The case is Soaring Eagle Casino & Resort and UAW. The complaint alleged that the Tribe violated Section 8(a)(1) of the NLRA by maintaining an unlawful no-solicitation policy in its handbook and prohibiting employees from talking about the Union in the employee hallway, and (2) Section 8(a)(3) and (1) of the Act by suspending and then discharging an employee for engaging in union solicitation and distribution activities in the employee hallway and public bathroom in the casino. The Tribe denied the allegations and argued that the NLRA does not apply to a tribal Government’s exercise of sovereign authority absent express congressional authorization. The ALJ disagreed and ordered compliance.

Lawrence D. Rosenthal, Title VII's Unintended Beneficiaries: How Some White Supremacist Groups Will Be Able to Use Title VII to Gain Protection from Discrimination in the Workplace, 84 Temple L. Rev. 443 (2012).

Labor laws are enforced in many different ways. Sometimes public agencies enforce the laws and sometimes workers are authorized to do so. Sometimes employer/violators pay for litigation costs and sometimes not. Sometimes the sanctions for violations are set by the harm caused (such as loss of backpay) and sometimes the sanctions are fines and penalties. Sometimes agencies are the primary fora for hearing disputes and sometimes courts. The consequences of these types of differences in labor enforcement are under-studied empirically. Labor enforcement theory, if anything, is even less well-studied. This book chapter examines labor enforcement theory with a focus on the choice between public or private enforcement. The article begins by presenting a standard economic model of enforcement. The chapter then applies the model to private and public enforcement and argues, among other things, that private enforcement adjusts better than public enforcement to economic downturns, but is less effective at enforcing violations that affect current employees. The chapter concludes with a critique and call for re-evaluation of the standard economic model of enforcement.